Did Testimony Go Too Far in Sentencing of Coast Guard Member?

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Special to McClatchy Washington BureauBy Michael Doyle

WASHINGTON -- Two former colleagues of a sexually abusive South Carolina-based Coast Guardsman blamed the stress of his court-martial for their complicated pregnancies. Now, judges must decide whether it was unfair to have those assertions considered in his sentencing.

One of the women miscarried. The other woman delivered her child prematurely. Their painful testimony anchors a case that began aboard the Gallatin, a since-decommissioned cutter based at the Charleston Naval Complex. It will end at the nation's highest military appeals court.

But the Oct. 26 hearing at the U.S. Court of Appeals for the Armed Forces could reach beyond former Boatswain's Mate Second Class Omar M. Gomez, now serving an eight-year prison term. The case could speak to the role of roiled emotions as the military combats sexual assault.

"This whole area is a third rail," Eugene Fidell, a research scholar and visiting lecturer specializing in military law at Yale Law School, said Friday. "Everyone has a hair trigger about it."

A court-martial panel meeting at the Federal Law Enforcement Training Center in North Charleston in 2013 convicted Gomez, following a six-day trial, of aggravated sexual assault, indecent exposure and other offenses.

Throughout all the U.S. military branches, 3,374 reports of sexual assault were reported in Fiscal 2013. Last year, 6,083 reports of military sexual assault were filed. Officials attribute the increase to improved reporting rather than worsening conditions.

After Gomez's conviction, military prosecutors summoned several witnesses who had testified against him to return as part of a presentation justifying a prison sentence.

"I was supposed to have twins and one didn't make it," said the first woman, identified only as MS. "And with more stress from this case, I was worried for this baby that was living inside me, hoping that this stress didn't make his heart rate go up."

MS had previously testified that Gomez, then one of her supervisors aboard the Gallatin, had slapped her buttocks and shown her his penis and testicles.

The second woman, identified as SW, first testified that Gomez had repeatedly groped her breasts, buttocks and groin, at one point telling her "I want it and I'm going to get it." During the sentencing hearing, she attributed her subsequent premature delivery to stress-caused preeclampsia, a condition marked by high blood pressure.

"It's hard to see my baby, because he was born premature," the woman recounted. "It's just, it's really hard."

Gomez's trial defense attorneys did not object at the time.

In his appeal, though, Gomez's team questioned the women's claims and their effect on the panel deciding his fate. The eight-year prison term was more than the five years sought by Gomez's defense attorneys but less than the 20 to 30 years recommended by Coast Guard prosecutors.

"The government offered no medical or expert testimony to corroborate a link or causation between the stress of trial and their complications," Gomez's appellate attorney Lt. Philip A. Jones wrote. "It is just as likely these complications were not caused by stress at all, but by any number of other causes including random chance."

Jones added that "it is hard to imagine evidence that is more prejudicial" than to claim, as the two women did, that stress induced by Gomez's court-martial was "responsible for harms to innocent and defenseless unborn children."

The government's two appellate attorneys countered in their brief that the testimony was short and "simply involved two victims stating that the crimes and the process had been stressful, which negatively impacted them even more because they were pregnant."

Though Fidell, who served as a Coast Guard judge advocate before joining the Yale Law School faculty, cautioned that "it's very hard to generalize" from the Gomez case, it does arise amid a sensitive command climate marked by high-level references to an "epidemic" of military sexual assault.

Appellate judges have already warned that some advocacy goes too far.

Military defense attorney Philip D. Cave, for instance, noted Friday that the Army Court of Criminal Appeals last year overturned Staff Sgt. Gabriel C. Garcia's rape conviction in part because of the prosecutor's improper references to the military's heated campaign against military sexual assault.

"It is a problem," the prosecutor stated during Garcia's trial. "A problem that we all in this courtroom know about, a very big problem ... that is at the forefront of what we are trying to battle against in the Army today."

Released from the Naval Consolidated Brig Charleston in South Carolina, Garcia was subsequently acquitted of the rape charge at his retrial.